G-E (Children : Hague Convention 1980: Repudiatory Retention and Habitual Residence)

A repudiatory retention under the Hague Child Abduction Convention 1980 requires a subjective intention not to return and an objectively identifiable act or statement manifesting repudiation. A private, unmanifested thought is insufficient, although communication to the left-behind parent is unnecessary. Wrongful retention is an identifiable event, although its precise day may not always be ascertainable. Habitual residence requires a broad, fact-sensitive assessment of integration and connections with each state. No fixed period or permanent settlement intention is required. Appellate courts should not disturb evaluative findings where the correct principles were applied and the conclusion was reasonably open.

The father sought the summary return of two children to Australia under the Hague Child Abduction Convention 1980. The mother and children had travelled to England in July 2017 for an agreed temporary stay, which was extended after the maternal grandfather’s death. The children attended school and pre-school in England.

The mother stated by email on 27 March 2018 that she would not return to Australia. On 18 October 2018, HHJ Hillier dismissed the application, finding that the wrongful retention occurred on 27 March 2018 and that the children were habitually resident in England by late December 2017 or early January 2018. The father appealed, challenging both findings and arguing that the closeness of the dates prevented application of the Convention.

The appeal was dismissed. Moylan LJ gave the reasons, with Flaux and Longmore LJJ agreeing.

1. The judge had adopted the correct sequence: first determine the date of wrongful retention, then determine the children’s habitual residence at that date.
2. Under the Hague Child Abduction Convention 1980, repudiatory retention requires a subjective intention by the travelling parent not to return the child in accordance with the agreed temporary arrangement, together with an objectively identifiable act, statement or combination manifesting repudiation of the left-behind parent’s custody rights. A purely internal and unmanifested thought is insufficient. Communication to the left-behind parent is not essential. This followed the Supreme Court’s reasoning in In re C and another (Children) [2018] UKSC 8, reported at [2019] AC 1.
3. Wrongful retention is an identifiable event rather than a continuing process. The exact date need not always be ascertainable to a particular day, but the period under Article 12 runs once the actual date is established.
4. Habitual residence requires a broad and comparative factual assessment of the child’s integration and connections with both states. Relevant considerations include the duration, conditions and purpose of residence, schooling, family and social relationships, parental intentions, and the nature and stability of the residence. No fixed period or permanent or indefinite parental intention is required. The assessment identifies the practical centre of the child’s life. The court applied the guidance in In re R [2016] AC 76, In re B [2016] AC 606 and Proceedings brought by HR [2018] 3 WLR 1139.
5. The judge had carefully assessed the mother’s oral and documentary evidence, both individually and collectively. Her conclusion that the mother formed the relevant intention between 11 and 27 March 2018 was reasonably open. The conclusion that the children had become habitually resident in England by late December 2017 or early January 2018 was also sufficiently supported by their integration, existing ties, stability, schooling and social life in England.

The appeal against the order of 18 October 2018 was dismissed. The appellant was ordered to pay the respondent’s appeal costs, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): On 1 March 2019, the appeal was dismissed. The court upheld the findings that the repudiatory retention occurred on 27 March 2018 and that the children were habitually resident in England by late December 2017 or early January 2018. [2019] EWCA Civ 283.
• High Court of Justice, Family Division: HHJ Hillier, sitting as a Deputy High Court Judge, dismissed the father’s application on 18 October 2018 under the Hague Child Abduction Convention 1980.